Justice Department informed the Court that an EIS could not be prepared until the middle of 1974. See Exhibit B to Verified Complaint. Hearings were finally held in December, 1973, and the final EIS, covering all Thereafter, the Justice Department, on behalf of the Secretary, repeatedly represented to the District Court that action respecting the leases, including those sought by Kerr-McGee, would be taken shortly. When pressed by the Court as to Interior's progress in processing the lease applications, the Justice Department wrote a letter to the Court, dated November 15, 1974, stating that a "draft program decision option document (respecting Osceola phosphate leases] . . was distributed to offices both inside and outside of the Department of the Interior between October 15 and November 1, 1974" and that "a final decision option document will be submitted to the Secretary of the Interior sometime during the first two weeks of December [1974]." Exhibit C to Verified Complaint. Despite the Justice Department's representation that a decision respecting the leases would be made shortly after December 1, 1974, almost a year passed without - 7 any action by the Secretary. Finally, plaintiff made written inquiry to the Interior Department requesting, in view of past representations, that action be taken within thirty days or the plaintiff would have "no alternative but to seek an appropriate remedy in the courts." Exhibit D to Verified Complaint. The Department responded that a new Secretary of the Interior had recently been nominated and due to the "significance of the decision whether to grant the applications," it was necessary that the SecretaryDesignate be fully apprised "of all aspects of the matter." As Hugh C. Garner, the Associate Solicitor of the Department put it, "[d]epending upon the length of the confirmation process, it is possible that a decision could be forthcoming in the near future." Exhibit E to Verified Complaint. Yet on October 17, 1975, the day the new Secretary took office, the Justice Department informed the Court in Florida v. Morton that it had become impossible to predict when a decision on the leases would be made. Again, plaintiff contacted the Department by letter. Plaintiff's letter enumerated the prior representations of the Department and the corresponding delays and respectfully requested assurance that the leases would be granted. Again, plaintiff's letter stated that if the Secretary was unable to give assurance that "Secretarial action will be forthcoming, Kerr-McGee will have no other alternative but to reluctantly seek an appropriate remedy in the courts. Exhibit F to Verified Complaint. On October 28, 1975, six years after Kerr-McGee first applied for the preference right leases, and more than sixteen months after the Department prepared the final EIS, the Secretary issued a "news release" stating that "additional information was necessary before a Department decision could properly be made on preference right lease applications" and announcing a two-year study on the effects of phosphate mining on the underground water supply and wildlife in the Osceola National Forest area. Exhibit G to Verified Complaint. Plaintiff was similarly notified by letter of January 16, 1976, that the Secretary had deferred a final decision on the lease applications until the Department obtained more detailed information regarding the Florida acquifer. The Department's letter also stated that the Department "had taken some preliminary steps to secure the necessary information" and "tentatively expects to complete the needed studies by December, 1977." Exhibit H to Verified Complaint. The Secretary's failure to grant Kerr-McGee's leases stands in stark contrast to the position taken recently by the Department's Solicitor. The Solicitor has twice given the opinion, in memoranda dated June 30, 1975, and December 4, 1975, respectively, that the Secretary's duty to issue leases to a successful prospecting perincluding the holder of a phosphate prospecting mittee permit - is mandatory. (Attached to this Memorandum as Exhibits 3 and 4.) In both memoranda, the Solicitor examined the Department's practice, as well as the language and legislative history of the prospecting permit statutes, and concluded that a prospecting permittee has an "absolute right" to a lease if he shows the Secretary that he has made a valuable discovery. 9 The Government's failure to take any action in spite of its repeated assurances that the Osceola leases would issue, coupled with its subsequent change of position with regard to the date upon which a decision will be made, has necessitated action by Kerr-McGee to secure the leases. Moreover, Florida v. Morton has become an inconvenient and ineffectual vehicle by which Kerr-McGee may protect its rights and secure the Secretary's compliance with the phosphate leasing statute. The presence of additional parties and extraneous claims in that case renders any action by Kerr-McGee against the Secretary procedurally cumbersome. In fact, the State of Florida has informed the District Court for the District of Columbia that it will not further prosecute its case until a final decision has been made on the lease applications. Since no further action has occurred in that case, Kerr-McGee has filed this suit in order to protect its vested rights in the preference right leases. ARGUMENT I. THE SECRETARY'S DUTY TO ISSUE The grant of a preference right lease for phosphate mining is mandated by law if the holder of a prospecting permit makes a discovery of a valuable phosphate deposit. "[I]f prior to expiration of the permit, This statute was enacted in 1960 in order to authorize the issuance of phosphate prospecting permits and to guarantee phosphate permittees the same right to preference leases that permittees seeking coal, sodium, sulfur, oil and gas, and potash already had under the Mineral Leasing Act of 1920. See 1960 U.S. Code Cong. and Adm. News, 1805-1809. While neither the courts nor the Department of the Interior has ever rendered a decision construing the entitlement language of § 211(b), the "shall be entitled" language of similar provisions of the Mineral Leasing Act has uniformly been construed to require the issuance of preference right leases. In Wilbur v. United States ex rel. Barton, 46 F.2d 217, 221 (D.C. Cir. 1930), aff'd sub nom. United States ex rel. McLennan v. Wilbur, 283 U.S. 414 (1931), the court construed oil and gas provisions similar to $ 211(b) to vest legal rights in the permittee: "Under Section 13 [of the Mineral a lease." Thus Congress recognized The Department of the Interior has consistently taken an identical position. Thus, for example, 30 U.S.c. S 201 states that a permittee "shall be entitled to a lease" if he shows that he has made a discovery of coal in |